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Following up on my last post, in which I asked why there were still no national standards for forensic science five years after the National Academy of Sciences’2009 report Strengthening Forensic Science in the United States, and with scandal after scandal in U.S. crime labs all over the country, there may be light on the horizon.  On January 10, the U.S. Department of Justice (DOJ)  and the National Institute for Standards and Technology (NIST) announced the formation of the National Commission on Forensic Science.

According to the announcement issued by DOJ and NIST:

Members of the commission will work to improve the practice of forensic science by developing guidance concerning the intersections between forensic science and the criminal justice system. The commission also will work to develop policy recommendations for the U.S. Attorney General, including uniform codes for professional responsibility and requirements for formal training and certification.

John P. Holdren, Assistant to the President for Science and Technology and Director of the White House Office of Science and Technology Policy, said that the Commission “will help ensure that the forensic sciences are supported by the most rigorous standards available—a foundational requirement in a nation built on the credo of ‘justice for all.’ ”

The formation of the Commission could be the a significant milestone in the march toward the use of real science and defensible national standards in forensic labs.  But it may be limited in what it can achieve just by its creation and structure: it is not a body created by Congress with power to come up with and implement standards or to regulate anything.  Rather it is a federal advisory committee, formed under the Federal Advisory Committee Act of 1972.  (A quick primer on the Act is here.)   It investigates and debate designated topics, and then reports its recommendations to the relevant federal department(s) that formed it (in this case, the DOJ and NIST).  Those agencies could choose to embrace and follow, or could choose to reject, some, all, or none of the Commission’s suggestions.

Still, this is a hopeful sign that we might be heading in the right direction.  At the very least, we will see a national conversation between the very large number of Committee members; they come from a variety of backgrounds in government, science, the legal system, and elsewhere.  See the list of more than thirty Commission members at the bottom of this announcement.

I hope readers will weigh in on the following question: realistically, what will come from the Committee?  Will the government adopt these recommendations?  Will the recommendations include national standards to regulate forensic testing, assure quality control, and the like? In the end, will the work that you foresee coming from the Commission improve the U.S.’s largely unregulated system?

New York City will have a new mayor in 2014.  In my article “Ten Steps Bill de Blasio and Bill Bratton Should Take to Fix Stop-and-Frisk,” published in The Nation, I offer a way forward for Mr. de Blasio to start repairing the damage done by the Bloomberg-era policing of the last 12 years.

New York, and indeed the entire country, is waiting to see what the newly sworn-in Bill de Blasio will do the first week of January to fulfill his promise to reform stop-and-frisk.  His first step should be to drop the appeal of Floyd v. City of New York, a move he promised to make many times on the campaign trail….Once the stop-and-frisk appeal is dropped, here are the top ten steps de Blasio and Bratton should take as part of the Floyd remedies process to move forward with stop-and-frisk reform and end racial profiling.

Among the steps I recommend: allowing community stakeholders to be part of the reform process; setting up an independent monitor, and creation of an early warning system.  Many of what you’ll read echo what is in the court’s opinion setting out the remedies for the violations the evidence proved.

To get at least some sense of what Bratton’s approach may be, take a look at this article from the Wall Street Journal on December 20. Perhaps “collaborative policing” — Bratton’s most-frequently-used phrase so far — will include allowing stakeholder participation in the fashioning of reforms; it is too early to tell at this point.

In a newly-published study, researchers find that forensic experts rendering opinions may unconsciously bias their results toward the parties that employ them.  The results have potentially broad application across a wide variety of traditional forensic disciplines.

The journal Psychological Science has posted the study, called “Are Forensic Experts Biased by the Side That Retained Them?”  (I thank The Crime Report, from John Jay College of Criminal Justice, for bringing it to my attention.)  The authors, Daniel C. Murrie, Marcus T. Boccaccini, Lucy A. Guarnera, and Katrina A. Rufino, tested the idea that forensic experts called upon to evaluate evidence in an adversarial legal proceeding might respond differently, depending solely upon which party asked them to perform the evaluation.  Here’s the abstract to the study:

How objective are forensic experts when they are retained by one of the opposing sides in an adversarial legal proceeding? Despite long-standing concerns from within the legal system, little is known about whether experts can provide opinions unbiased by the side that retained them. In this experiment, we paid 108 forensic psychologists and psychiatrists to review the same offender case files, but deceived some to believe that they were consulting for the defense and some to believe that they were consulting for the prosecution. Participants scored each offender on two commonly used, well-researched risk-assessment instruments. Those who believed they were working for the prosecution tended to assign higher risk scores to offenders, whereas those who believed they were working for the defense tended to assign lower risk scores to the same offenders; the effect sizes (d) ranged up to 0.85. The results provide strong evidence of an allegiance effect among some forensic experts in adversarial legal proceedings.

If these results stand the test of time, the implications are potentially great,  As discussed in the National Academy of Sciences’ landmark 2009 report “Strengthening Forensic Sciences in the United States: A Path Forward,” most forensic disciplines (outside of DNA identification and those that use traditional chemical analysis) rely to a significant degree on human interpretation to generate conclusions.  The results of the Murrie et al. work suggest that all of these disciplines may be influenced by a very important piece of context — who pays for their work — regardless of which side of the case that is.  The study would seem to support one of the central recommendations of the National Academy of Sciences report: “removing all public forensic laboratories and facilities from the administrative control of law enforcement agencies or prosecutors’ offices” (p. 24).

I’ll be presenting two talks on my book Failed Evidence: Why Law Enforcement Resists Science (2012) in Cleveland on Wednesday, July 17.  The first event, at noon will be at noon, part of the ACLU’s Brown Bag series; details here.  The second will take place at 7:00 pm; click here for details and RSVP information.  Both events are free and open to the public.  Location for both the Wohl Civil Liberties Center, 4506 Chester Ave., Cleveland, OH  44103.  The talks are sponsored by the American Civil Liberties Union of Ohio and the Ohio Association of Criminal Defense Lawyers; non-members are welcome and encouraged to attend.

The 7:00 pm event (but not the noon event) has been approved for 1.0 units of Ohio CLE credit.

We’ll have a full discussion of the big issue:  with science such an important part of life, why does law enforcement ignore so much of it that could improve the criminal investigation process?  We’ll also get into concrete suggestions for improvement.

Books will be available for purchase and signing.

When a former high-ranking Justice Department official speaks of a “revolution” in criminal justice, with the whole field turning toward science, could it mean less failed evidence in the future?  What does it mean for those concerned with faulty forensic science?

Laurie Robinson served as Assistant Attorney General in both the Clinton and Obama Justice Departments, where she oversaw the Office of Justice Programs (OJP), the research, statistics and criminal justice assistance arm Justice.  That made her remarks to the Delaware Center for Justice the other day worth noticing.  According to the Wilmington News Journal, “[w]e’re seeing something akin to a revolution in criminal justice in this country,” said Robinson, now on the faculty of George Mason University. “We’re at an important crossroads, one where ideology has taken a back seat, and science and pragmatism have come to the fore.”

Robinson’s web page at George Mason says her tenure at OJP  “was marked by a focus on science and evidence-based programming.”  She was in Delaware to discuss the state’s re-entry programs  and other initiatives to reduce recidivism, and few would disagree that those important programs need scientific and statistical support.   But I wonder whether Robinson would be as optimistic about science’s role in forensic methods, which have played a role in about half of all wrongful convictions across the U.S.  Surely, forensic science needs “science and evidence-based” support and examination — badly.

 It has now been more than four years since the release of the landmark 2009 National Academy of Sciences report Strengthening Forensic Sciences in the United States: A Path Forward, which found that except for DNA and chemical analysis, most of what we think of as forensic science isn’t science at all.  In that time, little seems to have changed; scandals in crime labs continue to pile up in jurisdictions across the country (see my posts about lab scandals just this past year in Massachusetts  and Minnesota,  for example).  In a particularly compelling piece of writing in the Huffington Post, Radley Balko discusses the long-running crime lab scandal in Mississippi, and puts it in context: Mississippi’s scandal “is just the latest in a long, sad line of such stories” that Balko has already chronicled.

What’s to be done?  As a start, I argued in chapter 7 of  Failed Evidence, all federal money that goes to law enforcement should carry with it a requirement for compliance with best practices in police investigation and forensic science.  Not all law enforcement agencies run their own forensic labs (and as the NAS report said in Chapter 6, “Improving Methods, Practice, and Performance in Forensic Science,” labs should be independent of law enforcement.).  But for those that do, compliance with standards that would avoid systematic error, human biases, fraud, and improper scientific testing and testimony should be mandatory.

That would start a revolution right there.  Because what law enforcement agency could afford to just turn down federal funding, in budgetary times like these?

 

Last week, a judge in Florida ruled that the trial of George Zimmerman in the death of 17-year-old Travon Martin will begin next week, as scheduled.  The case will put Florida’s “stand your ground” (SYG) law front and center.  How does Florida’s SYG law work?  What was it supposed to do, and does it accomplish those goals?

I was interviewed on SYG laws on WESA Public Radio’s Essential Pittsburgh on June 3.  (The interview is here.)  Here’s a brief rundown of what I know.

For centuries, Anglo-American law on homicide and self-defense have had a singular goal: avoid violence and death.   If a person is faced with an illegal forcible attack, he or she can engage in self-defense, using as much force as necessary but no more.  An attack with fists can be met with fists, but not with firearms. (Possible exception: the fists of a trained fighter or martial arts expert.)  If one is faced with deadly force, one can use deadly force in self-defense, but if there is a way that one can retreat from the threat  in absolute safety — that is, if the victim can get away without putting himself at risk — the law required him to retreat and avoid the fight.  This was consistent with the overall idea: avoid injury and death if at all possible.

The one exception to the rule of safe retreat was that one did not have to retreat within one’s own home.  This was called the Castle Doctrine: your home is your castle, your ultimate place of safety, and one should not have to flee to safety when they are already at home.

Florida’s SYG law changed this.  A person under deadly attack did not have to retreat in his home, or in any other place that he had a right to be.  There was no more obligation to retreat outside the home; rather, the person could stand his ground and resort to deadly violence in his own defense, even if there was a safe way out of the situation.  In addition, the Florida SYG law put in place strong presumptions preventing a victim who killed an attacker from being criminally charged, and preventing him from being sued.  Most SYG laws have some or all of these features.

SYG laws were supposed to do three things.  First, advocates said the laws would lower the rate of serious crime, because criminals would be deterred.  Second, SYG laws would be a particular deterrent against homicides.  Third, they would put an end to criminal charges against people engaged in legitimate self-defense and the lawsuits that these people were facing from the criminals who they shot (or their survivors).

How has this worked out?

I am a member of the American Bar Association’s National Task Force on Stand Your Ground Laws, which is currently holding a series of hearings on SYG laws around the U.S., and collecting the relevant research studies on these laws and how they work in practice.  (The next hearing is in Philadelphia on Thursday, June 6, and is open to the public; complete information is here.)   The studies show something different than advocates for these laws expected.  The leading scholarship on SYG laws, from researchers at Texas A & M University, shows that in states that have passed SYG laws, serious crime is unchanged — not down — and homicide has shown an overall increase of 8 percent.  (Here is another study that also shows how homicide increases.)  And as far as criminal charges and/or lawsuits, those seem not to have been anything more than anecdotes in the first place.

I’ll post more on what we learn as the Task Force does its work.

An interview with Failed Evidence author David A. Harris about the Reid Technique, the most popular method for interrogating suspects in U.S. police departments, is featured on Shadow Boxing,  a blog written for Psychology Today.  Shadow Boxing is written by Dr. Katherine Ramsland, who teaches and writes about forensic psychology.  The post was chosen as an “essential read” for the Education area of Psychology Today.  Here’s an excerpt:

The technique seems to be designed for entrapment and even a bit of brainwashing. Is this perception accurate?

I guess I would put it a little differently, though I do understand why you would see it that way. The Reid technique for interrogation is not a process designed for the discovery of facts and evidence. Rather, it is a multi-phase process, to be used when the interrogator has already concluded that the subject is guilty, and therefore simply needs the confession out of the person to confirm the guilt and prove it.

March 18 marks the 5oth anniversary of the U.S. Supreme Court’s decision in Gideon v. Wainwright.  The Gideon case requires that if person charged with a felony wants the assistance of a lawyer but cannot afford one, the state must provide a lawyer at no charge.  The Court based its decision on the Sixth Amendment‘s guarantee of the right to the assistance of counsel.  When facing felony criminal charges that could result in prison, the Court said, lawyers were “necessities, not luxuries.”

In a decision nine years later, the Court extended the right to counsel to misdemeanor cases in which the trial judge might send the accused to jail.  But the right to counsel remains limited to criminal cases; while many jurisdictions have created organizations that provide lawyers  in civil cases (divorces, child custody cases, etc.) for people who cannot afford to pay, the  state is under is no constitutional obligation to do so.

There has been a lot said in the run-up to this 50th anniversary about how well the promise of Gideon has actually been carried out around the country.  I’m going to post about some of those issues later this week.   I want to begin with a more basic question, which I discussed in an interview on public radio a few days back: why should the state have to pay for lawyers for indigent defendants?  There are three important points to make.

First, we don’t supply counsel because of poverty.  We may or may not believe that there is a moral obligation to help the poor with basic needs, but our Constitution does not require that the state do this.  As Justice Harlan once said in another case, the Constitution does not include a philosophy of leveling.  The bottom line is that this shouldn’t be thought of as an act of charity.

Second, we handle cases in this country in an adversary system of justice.  Unlike other countries, evidence in our system is presented by both sides.  Each side works at exposing the weaknesses of the other through cross-examination and presentation of competing evidence.  The essence of such a system is the ability to challenge the other side’s evidence effectively.  If the accused has no lawyer, he or she will be unable to mount an effective challenge.  This would destroy the balance in the whole system.  This isn’t a matter of giving the defendant a “sporting chance,” or having an equal shot at winning.  Rather, in a process initiated by the state, the purpose of which is to punish the defendant and take away his or her freedom, it is fundamentally unfair to have one side of the adversary process at such a basic disadvantage.

Third, we don’t provide counsel to the accused because he or she deserves it; we don’t do it for them.  We do it, instead, for us.  Our values, enshrined in the Constitution, require that before the state can strip a person of property, liberty, or life, we must accord that person due process of law and a fair trial.

This may seem ironic, since many people accused of crime seem to have no regard for the law.  But that isn’t the point.  We don’t do it for them.  We do it because of who we are and what we value.  We do it for us.

In a post last week, I discussed the choice of a new chief of police in Pittsburgh.  Nathan Harper, the Chief of the Bureau for seven years, had been forced to resign by Mayor Luke Ravenstahl amidst an ongoing FBI investigation into police department finances.  (Mr. Harper has not been charged; the investigation continues.)  Then, just days later, the Mayor announced that he would not run for re-election in November.  With all of this happening, I was among a group of people who testified before the City Council last week on the selection of the new chief.  There was broad agreement on a central point: outgoing Mayor Ravenstahl should not appoint a new chief.  Instead, an acting chief should serve until the next may makes the permanent appointment.  The Pittsburgh Post-Gazette reported:

Pittsburgh Mayor Luke Ravenstahl said Monday that he would not appoint a permanent chief to the embattled police bureau during his remaining 10 months in office and instead will leave the choice to his successor.  “It wouldn’t be fair in my mind to the next mayor to not have him or her have the chance to choose their chief, especially given all the recent activity around the bureau,” he said.

According to a story on WESA FM, Pittsburgh public radio, Ravenstahl said he would not appoint the next chief because with ten months left in his term, the decision would be “extremely rushed” and therefore should be left to his successor.

Whatever the reason, I think this is a good decision.  I can’t conceive that we would be able to attract top-quality candidates for the post knowing that the administration will change in the next year.  Who would take the job under those circumstances?  One reader suggested appointing a new chief as soon as possible, and writing a contract that would essentially guarantee the new chief a term that would extend into the new mayor’s term even if the mayor didn’t like it.  But that won’t work.  The chief (as I imagine is true in most places) serves at the pleasure of the mayor as a matter of law.  No contract can change this.

Thus the naming of the new chief will have to wait for the outcome of the mayoral election.  In the meantime, the federal investigation continues, and more revelations appear in the press by the day.  The only thing for sure is that the next chief is likely to start with a mandate for clean up and change.

 

In a story titled “Questions Left for Mississippi Over Doctor’s Autopsies,” we learn about Dr. Steven Hayne, who did most of the autopsies in the state of Mississippi for approximately two decades .  From “the late 1980s through the late 2000s,” Dr. Hayne did autopsies for the state, but rather than receiving a regular salary as a state employee, Dr. Hayne was paid by the autopsy.  This gave him a strong incentive to do as many autopsies as he could.    He did about 1,700 autopsies in most of those years, a caseload that is about seven times the maximum recommended by the National Association of Medical Examiners.

There are now four lawsuits pending concerning Dr. Hayne’s work, with about ten more on the way.  Brought on behalf of inmates who claim they were wrongly convicted, the suits charge that Dr. Hayne misrepresented his qualifications as a forensic pathologist.  Perhaps more importantly, the lawsuits contend that Dr. Hayne drew conclusions based on ideas “that lie far outside standard forensic science.”  For example, in one infamous case, Dr. Hayne testified that a child had died of suffocation when a large male hand had covering his face.  Hayne based this opinion on a cast of the child’s face and his autopsy notes describing wounds on the child’s face, but the “large male hand” idea came weeks after the initial autopsy and only after the child’s three-year-old brother had implicated the mother’s boyfriend.   According to the article, there is no scientific support for what  Hayne did in the case or for the conclusions he drew.

“I saw a very similar case like that on ‘Law & Order: SVU,’ ” said Dr. Andrew M. Baker, the president of the medical examiners’ association and chief medical examiner for Hennepin County, Minn. “I’ve never heard of it in real life.” Dr. Baker said not only was the technique unheard of but so was the ability to speculate from those sorts of wounds about hand size or gender.

It’s tempting to regard this as another in a lengthening list of forensic scandals featuring faulty work.  But Dr. Hayne’s situation is worth noting, because it illustrates the power of forensic science, and why those who perform these tasks must be under reasonable professional scrutiny and be subject to  challenge.   In Mississippi, with no one to challenge him, Dr. Hayne’s autopsy results decided countless cases, and there was no one to push back.  In arrangements like that, disaster awaits.  The article quotes Dr. Lloyd White, the Mississippi state medical examiner from 1989 to 1992, who explains why things like this happen: poor science is “able to persist because scientific testimony is too often viewed with uncritical reverence and because the people affected by its misuse usually have little support or sympathy.”  No one was in a position to challenge Hayne, since he did almost all the autopsy work in the state, and the state and the prosecutors liked it that way.  Years later, individual convicts, their families and perhaps the taxpayers are left to clean up the damage and pay for the mistakes.